M/s Shahi Exports Pvt. Ltd.,, New Delhi v. Pr. CIT, New Delhi

ITA 2170/DEL/2017 | 2008-2009
Pronouncement Date: 24-03-2021 | Result: Allowed

Appeal Details

RSA Number 217020114 RSA 2017
Assessee PAN AADCD8448F
Bench Delhi
Appeal Number ITA 2170/DEL/2017
Duration Of Justice 3 year(s) 11 month(s) 13 day(s)
Appellant M/s Shahi Exports Pvt. Ltd.,, New Delhi
Respondent Pr. CIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 24-03-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted G
Tribunal Order Date 24-03-2021
Last Hearing Date 17-03-2020
First Hearing Date 17-03-2020
Assessment Year 2008-2009
Appeal Filed On 11-04-2017
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI G BEN CH NEW DELHI BEFORE SHRI BHAVNESH SAINI JUDICIAL MEMBER AND SHRI N.K. BILLAIYA ACCOUNTANT MEMBER ITA NO. 2170/DEL/2017 [ASSESSMENT YEAR: 2008-09] & ITA NO. 2171/DEL/2017 [ASSESSMENT YEAR: 2010-11] M/S SHAHI EXPORTS PVT LTD VS. THE PR. C.I.T F -88 OKHLA INDUSTRIAL AREA CIRCLE- 1 PHASE 1 NEW DELHI NEW DELHI PAN: AADCD 8448 F [APPELLANT] [RESPONDENT] DATE OF HEARING : 18.03.2021 DATE OF PRONOUNCEMENT : 24.03.2021 ASSESSEE BY : SHRI M.P. RASTOGI ADV SHRI DEEPAL MALIK ADV REVENUE BY : SHRI AMITABH KUMAR SINHA CIT- D R 2 ORDER PER N.K. BILLAIYA ACCOUNTANT MEMBER THE ABOVE CAPTIONED TWO APPEALS BY THE ASSESSEE ARE PREFERRED AGAINST TWO SEPARATE ORDERS DATED 21.03.2017 FRAMED U/S 263 OF THE INCOME TAX ACT 1961 [HEREINAFTER REFERRED TO AS 'T HE ACT' FOR SHORT] OF THE COMMISSIONER OF INCOME TAX [APPEALS] CENTRAL - 1 NEW DELHI PERTAINING TO ASSESSMENT YEARS 2008-09 AND 2010-11 RESPECTIVELY. SINCE BOTH THESE APPEALS INVOLVE COMMON ISSUES THE Y ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF C ONVENIENCE AND BREVITY. 2. IN BOTH THE APPEALS THE ASSESSEE HAS RAISED THE FOLLOWING ADDITIONAL GROUND OF APPEAL IN ADDITION TO THE GROU NDS TAKEN IN FORM NO. 36: THAT THE PR. CIT HAS NO JURISDICTION U/ S 263 OF T HE ACT TO REVIEW AND REVISE AN ORDER PASSED BY THE ASSESSING OFFICER U/S 153C/153A OF THE ACT DATED 30.03.2015 WHICH ITS ELF WAS ILLEGAL AND BAD IN LAW DUE TO INVALID ASSUMPTION OF JURISDICTION AS CONTEMPLATED U/S 153C/ 153A OF THE ACT. 3 3. SINCE THE ADDITIONAL GROUND GOES TO THE ROOT OF THE MATTER AND REQUIRES NO VERIFICATION OF ANY FACT THE SAME IS A DMITTED FOR ADJUDICATION IN LIGHT OF THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF NTPC 229 ITR 383. 4. SINCE THE ADDITIONAL GROUND GOES TO THE ROOT OF THE MATTER THE SAME IS TAKEN UP FIRST FOR ADJUDICATION. 5. REPRESENTATIVES OF BOTH THE SIDES WERE HEARD AT LENGTH. CASE RECORDS CAREFULLY PERUSED. 6. ASSESSMENT ORDER DATED 30.03.2015 FOR A.Y 2008-0 9 WAS FRAMED U/S 153A R.W.S 153C AND 143(3) OF THE ACT FOR A.Y 2 008-09 AND 2010-11 SEPARATELY. ASSESSMENT FOR A.Y 2008-09 WAS PREVIOU SLY FRAMED U/S 143(3) OF THE ACT AND ASSESSED INCOME WAS COMPUTED AS UNDER: 4 5 7. ASSESSMENT FOR A.Y 2010-11 WAS PREVIOUSLY FRAMED U/S 143(3) OF THE ACT AND ASSESSED INCOME WAS COMPUTED AS UNDER: 6 7 9. A SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT W AS CONDUCTED ON SHAHI EXPORTS GROUP OF CASES ON 16.01.2013 AND IN R ESPONSE TO NOTICE U/S 153A AND 153C OF THE ACT RETURNS OF INCOME WER E FILED. ASSESSMENT WAS COMPLETED U/S 153A R.W.S 153C AND 14 3(3) OF THE ACT FOR A.YS 2008-09 AND 2010-11 BY MAKING THE FOLLOWIN G OBSERVATIONS: A.Y 2008-09 PERUSAL OF THE SUBMISSIONS FILED BY THE ASSESSEE A ND INFORMATION AVAILABLE IN THE RECORD SHOWS THAT THE CASE OF THE ASSESSEE FOR ASSESSMENT YEAR UNDER CONSIDERATION WAS TAKEN UP U/ S 143(3). THE ADDL. COMMISSIONER OF INCOME TAX RANGE-8 NEW DELHI VIDE ORDER DATED 20.12.2010 HAS ASSESSED THE INCOME OF T HE ASSESSEE AT RS. 5 27 78 840/-. A.Y 2010-11 PERUSAL OF THE SUBMISSIONS FILED BY THE ASSESSEE A ND INFORMATION AVAILABLE IN THE RECORD SHOWS THAT THE CASE OF THE ASSESSEE FOR ASSESSMENT YEAR UNDER CONSIDERATION WAS TAKEN UP U/ S 143(3). THE ADDL. COMMISSIONER OF INCOME TAX RANGE-8 NEW DELHI VIDE ORDER DATED 20.12.2010 HAS ASSESSED THE INCOME OF T HE ASSESSEE AT RS. 32 64 73 560/-. 8 10. THE LD. PCIT INVOKED THE PROVISIONS OF SECTION 263 OF THE ACT AND SET ASIDE THE ASSESSMENT ORDER DATED 30.03.2015 HOL DING THAT BECAUSE AFTER THE MERGER OF M/S SARLA FABRICS PVT LTD WITH M/S SHAHI EXPORTS PVT LTD WHATEVER ADDITIONS WERE MADE IN THE HANDS OF M/S SARLA FABRICS PVT LTD WERE TO BE ASSESSED IN THE HANDS OF M/S SHAHI EXPORTS PVT LTD AND ACCORDINGLY ORDER OF M/S SHAHI EXPORTS PVT LTD AS PASSED BY THE ASSESSING OFFICER U/S 153C OF THE ACT AMOUN TS TO ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 11. AS PER THE FACTS MENTIONED HEREINABOVE ADDITIO NS MADE U/S 143(3) OF THE ACT WERE REPEATED IN THE ASSESSMENT O RDER FRAMED/S 153A R.W.S 153C OF THE ACT. THIS MEANS THAT NO ADD ITIONS HAD ANY LINK WITH ANY INCRIMINATING MATERIAL FOUND AT THE TIME O F SEARCH AS ASSESSED INCOME U/S 143(3) OF THE ACT IS THE ASSESSED INCOME U/S 153C OF THE ACT. 12. THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF KABUL CHAWLA IN 380 ITR 573 HAS HELD THAT IF NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH IN RESPECT OF AN ISSUE THEN NO ADDITIONS IN RESPECT OF ANY ISSUE CAN BE MADE TO THE ASSESSMENT UNDER SECTION 153A AND 153C OF THE ACT. 9 13. THE HON'BLE SUPREME COURT IN THE CASE OF SINGHA D TECHNICAL EDUCATIONAL SOCIETY 397 ITR 344 HAS ALSO HELD THAT IN THE ABSENCE OF ANY INCRIMINATING MATERIAL NO JURISDICTION CAN BE ASSUMED BY THE ASSESSING OFFICER U/S 153C OF THE ACT. 14. IN LIGHT OF THE ABOVE BINDING DECISIONS ASSESS MENT FRAMED U/S 153C OF THE ACT IN A.YS 2008-09 AND 2010-11 ARE WIT HOUT JURISDICTION AND THEREFORE BAD IN LAW AND DESERVE TO BE QUASHE D AS NULL AND VOID. 15. THE SUPREME COURT IN THE CASE OF KIRAN SINGH & OTHERS VS CHAMAN PASWAN & ORS [1955] 1 SCR 117 HAS HELD AS UNDER: IT IS A FUNDAMENTAL PRINCIPLE WELL ESTABLISHED TH AT A DECREE PASSED BY A COURT WITHOUT JURISDICTION IS A NULLITY AND THAT ITS INVALIDITY COULD BE SET UP WHENEVER AND WHEREVER IT IS SOUGHT TO BE ENFORCED OR RELIED UPON EVEN AT THE STAGE OF EXECUTION AND EVEN IN COLLATERAL PROCEEDINGS. A DEFECT OF JUR ISDICTION WHETHER IT IS PECUNIARY OR TERRITORIAL OR WHETHER IT IS IN RESPECT OF THE SUBJECT-MATTER OF THE ACTION STRIKE S AT THE VERY AUTHORITY OF THE COURT TO PASS ANY DECREE AND SUCH A DEFECT CANNOT BE CURED EVEN BY CONSENT OF PARTIES. 10 16. IN LIGHT OF THE AFORESAID RATIO LAID DOWN BY TH E HON'BLE SUPREME COURT WE ARE OF THE CONSIDERED OPINION THAT THE AS SUMPTION OF JURISDICTION U/S 263 OF THE ACT IN RESPECT OF AN AS SESSMENT WHICH IS NON-EST IS ALSO BAD IN LAW AS A NON-EST ORDER CANNO T BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. AN ORD ER FRAMED U/S 263 OF THE ACT FOR BOTH THE A.YS 2008-09 AND 2010-11 ARE A CCORDINGLY QUASHED ON THE PRINCIPLE OF SUBLATO FUNDAMENTO CADIT OPUS MEANING THEREBY THAT IN CASE THE FOUNDATION IS REMOVED THE SUPER S TRUCTURE FALLS. SINCE THE FOUNDATION I.E. THE ORDER U/S 153C HAS BEEN RE MOVED THE SUPER STRUCTURE I.E. THE ORDER U/S 263 MUST FALL. 13. IN THE RESULT BOTH THE APPEALS FILED BY THE ASSESSEE IN ITA NOS. 2170 & 2071/DEL/2017 ARE ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 24.03. 2021. SD/- SD/- (BHAVNESH SAINI) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 24 TH MARCH 2021. VL/ 11 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT ASST. REGISTRAR 4. CIT(A) ITAT NEW DELHI 5. DR DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER